R v. Immigration Appeal Tribunal, Ex parte Hei Shing Shek and Wong Sing Fun Shek

R v Immigration Appeal Tribunal ex parte Hei Shing Shek and Wong Sing Fun Shek

Queen's Bench Division

[1986] Imm AR 178

Hearing Date: 14 March 1986

14 March 1986

Index Terms:

Deportation -- whether the Tribunal was empowered to take a different view on how discretion should be exercised from the view taken by the adjudicator when it had not heard any witnesses -- the ambit of ex parte Mahendra Singh -- whether the Tribunal was entitled to discount as a compassionate circumstance the time spent by the applicant in the United Kingdom in appealing against the decision to deport him: Immigration Act 1971 s 20(1): HC 169 paras 154-158: Immigration Appeals (Procedure) Rules 1972, r 18

Held:

The applicants are husband and wife. The husband was admitted to the United Kingdom in 1975 for twelve months with a work permit allowing him to work as an assistant cook at the Mayflower Restaurant, Glasgow. He was subject to the condition he should not change his employment without the consent of the Department of Employment. His leave was extended subsequently until January 1979. When he applied in November 1978 for further leave to remain, it was discovered that from January to March 1978 and from April to July 1979 the applicant had worked elsewhere than at the Mayflower Restaurant without the consent of the Department of Employment. He was accordingly refused an extension of leave. After his appeal against that refusal was dismissed, he was advised to leave the United Kingdom but did not do so. In consequence, in November 1983 the Secretary of State decided to initiate deportation proceedings against him pursuant to s 3(5)(a) of the Immigration Act 1971. He appealed. An adjudicator allowed his appeal on 18 May 1984. In particular he considered that it would be unduly harsh to deport the appellant and his wife for 'a breach of conditions which took place so long ago and the seriousness of which he did not appreciate'. The Secretary of State appealed to the Tribunal which allowed the appeal considering that the adjudicator, in all the circumstances, had wrongly exercised his discretion. On application for judicial review of the Tribunal's decision, it was contended by counsel that the Tribunal should be reluctant to adopt a different view from that formed by the adjudicator who heard the witnesses, which the Tribunal did not. Held: 1. The Tribunal was empowered to hear and consider the whole matter afresh. Its discretion was unfettered by its statutory power. 2. Following ex parte Mahendra Singh the Tribunal should be slow to take a different view of discretion from that of an adjudicator where its exercise depended on the impression made by a particular witness or on his credibility. In such cases the Tribunal should call evidence before it. Where the view of discretion did not depend on the credibility or demeanour of witnesses no such inhibition should restrict the Tribunal: Kwadwo Osei applied. 3. The decision of the Tribunal was not open to attack on Wednesbury principles.

Cases referred to in the Judgment:

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: [1947] 2 All ER 680 R v Immigration Appeal Tribunal ex parte Mahendra Singh [1984] Imm AR 1 Immigration Appeal Tribunal v Kwadwo Osei (unreported CA 23 October 1985)

Counsel:

A Riza for the applicants; R Ter Harr for the respondent PANEL: Mann J

Judgment One:

MANN J: There is before the court an application for judicial review. I granted leave to move on 26 February 1985. The applicants are Hei Shing Shek and Wong Sing Fun Shek who are husband and wife and are British Dependent Territories Citizens. They have two children, one who is in Hong Kong and the other, who is a daughter, born in July 1983 who is in this country. The respondent is the Immigration Appeal Tribunal. The decision impugned is a decision of 17 October 1984 whereby the Tribunal allowed an appeal by the Secretary of State against a decision of an adjudicator dated 18 May 1984. The female applicant's case is wholly dependent upon that of the male applicant. I shall not refer further to her. The immigration history of the male applicant commences on 2 October 1975 when he came to the United Kingdom with a work permit allowing him to work as an assistant cook at the Mayflower Restaurant, Kirkintilloch, Glasgow. He was given leave to enter for 12 months subject to a condition that he was not to change his place of employment without the consent of the Department of Employment. That leave was subsequently extended to 6 January 1979. Before the extension expired, the applicant sought further leave to remain. He made this further application on 29 November 1978. For the purposes of that application, the Home Department made enquiries. On 19 July 1979 they discovered that the applicant had worked for two periods at places other than the Mayflower. The periods were January 1977 to March 1978 and April to July 1979. At all other times the applicant had worked at the Mayflower. On 8 February 1980 the application of November 1978 was refused. The applicant appealed to an adjudicator who dismissed his appeal on 6 June 1981. The Tribunal refused leave to appeal on 6 July 1981. On 6 August 1981 the Secretary of State wrote to the applicants in these terms:

"I am directed by the Secretary of State to inform you that your appeal against his decisions of 8 February and 13 February 1980 were dismissed on 5 June 1981 and your application for leave to appeal to the Tribunal was refused on 6 July 1981. You therefore have no further claim to remain in the United Kingdom and should leave immediately. By failing to do so you render yourselves liable to prosecution and deportation under section 24 of the Immigration Act 1971 for knowingly overstaying your limited leave."

Further letters in a similar form were sent on 8 February 1982, 30 August 1983 and 27 October 1983. During the period of that correspondence, the applicant had difficulty with travel documents and was also engaged in making representations to a Member of Parliament. However, he did not leave this country voluntarily. On 30 November 1983, the Secretary of State gave notice of his decision to deport the applicant under section 3(5)(a) of the Immigration Act 1971. The subject-matter of that provision is deportation of overstayers. The applicant exercised the right of appeal conferred by section 15(1) of the Act and his appeal was heard by an adjudicator whose decision was given on 18 May 1984. It was in favour of the applicant. The Secretary of State sought leave to appeal from that decision. The grounds, as contained in a letter of 19 June 1984, are as follows: "a. The adjudicator erred in concluding that 'it would be unduly harsh to expel the appellant and his wife now on account of a breach of conditions which took place so long ago and the seriousness of which he did not appreciate' and appears to have over-looked that the appellate authorities previously refused to accept that the appellant was ignorant of the contents of letters signed by himself and his brother in December 1977 which attested to his employment at the Mayflower Restaurant at a time when he was employed elsewhere. b. The adjudicator has failed to remind himself that the exercise of the power of deportation should be consistent and fair between one person and another. c. The adjudicator has misdirected himself with regard to his consideration of the passage of time and has attached undue weight to this factor as a compassionate circumstance. d. The adjudicator has failed to take into consideration the fact that the appellant has no claim to remain here under the Immigration Rules." Mr Riza points out that those grounds do not appear to raise any point of principle. I am disposed to agree with Mr Riza that they do not. However that may be, the decision as to whether or not to appeal is a matter wholly for the Secretary of State. If it be thought at any time that his exercise of his right is oppressive, then he is answerable for it elsewhere and not here. The grounds to which I have referred led to leave to appeal being granted on 16 July 1984. On 17 October 1984 the Secretary of State's appeal was allowed. It is that decision which is impugned in these proceedings. It is convenient before looking at the decisions in the case to examine, first, the legislation and, second, the relevant immigration rules. The right of appeal against the decision to deport an overstayer is given, as I have said, by section 15(1). It is the right of an appeal to an adjudicator. Appeals against deportation orders made on the ground, for example, that the deportation of the person in question would be conducive to the public good, do not lie to the adjudicator but lie direct to the Tribunal. (See section 15(7)). Section 19 deals with the determination of appeals. So far as is material it provides:

"(1) . . . an adjudicator on an appeal to him under this Part of this Act (a) shall allow the appeal if he considers (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal."

The determination of appeals which lie direct to the Tribunal is dealt with in subsection (4) of section 19. It provides:

"Where in accordance with section 15 above a person appeals to the Appeal Tribunal in the first instance, this section shall apply with the substitution of references to the Tribunal for references to an adjudicator."

That is a necessary subsection because without it the Tribunal would have no indication at all as to how it is to determine appeals made to it as a tribunal of first instance. An appeal lies from an adjudicator to the Tribunal. Section 20(1) provides:

"Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."

I say at once that as a matter of vires, that plainly entitles the Tribunal in any case where the decision or action involved the exercise of discretion, to say that the discretion should have been exercised differently. Mr Riza, for the applicant, did not seek to suggest that the Tribunal could not consider matters afresh. The nature of his submission will appear in a moment. The relevant immigration rules are contained in HC 169. Paragraph 154 states:

"In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

Paragraph 158 provides:

"Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph 156, before a decision is reached."

Amongst the relevant circumstances listed in paragraph 156 is "length of residence in the United Kingdom". I go to the decision of the adjudicator. The adjudicator was Mr AA MacKeith. His conclusions are at page 4 of his decision. I go to paragraph 4(v) where he says: "However, a disturbing feature of this case is the length of time, which has elapsed between the discovery on 19 July 1979 of the appellant's breach of the conditions imposed in his case and the culmination of the proceedings consequent upon that breach, a period of five years." (I note that that appears to be a mistake and the relevant period was four and a quarter years.) "The appellant does not seem to have been responsible for the delay except in so far as he availed himself of the appeal machinery open to him. The delay was attributable partly to the slow operation of that appeal machinery and partly to the loss of the appellant's travel documents in the post. During that period of five years the appellant's hopes of permanent settlement have no doubt remained alive because of the forbearance or apparent inactivity of the authorities and perhaps a belief that those authorities were forebearing or inactive because they regarded his breach of his conditions as trivial. I am persuaded that he himself regarded it as trivial since he seems to have admitted it so frankly.

"(vi) In all the circumstances I feel that it would be unduly harsh to expel the appellant and his wife and child now on account of a breach of conditions which took place so long ago and the seriousness of which he did not appreciate. Exceptionally therefore, I find that there are compassionate circumstances in this case which make the normal course of deportation for an overstayer inappropriate."

In regard to that conclusion, the Tribunal said as follows:

"We have considered the submissions in the light of the admitted facts. We have to balance the compassionate circumstances detailed in paragraph 156 of HC 169 against the public interest in maintaining an effective immigration control. We take into account that the respondents have a daughter born in this country in July 1983, but as the adjudicator remarked this circumstance does not confer British citizenship upon her since the British Nationality Act 1981 came into force. Furthermore, the respondents have a nine year old son in Hong Kong. We agree with the adjudicator's finding 'it does not seem either that the respondent's situation in Hong Kong will be any better or any worse if he returns there than it was when he left, although in the nine years he has spent in the United Kingdom he has no doubt become accustomed to a higher standard of living'. The fact that the respondent has managed to prolong his stay in his country for so long after the breach of his conditions came to light is not in our opinion a matter which he can properly pray in aid. In our considered opinion the adjudicator wrongly exercised his discretion in this matter and the Secretary of State's appeal is consequently allowed. His decision to make a deportation order against the respondents is maintained."

That is the passage which Mr Riza seeks to flaw. As I have indicated, he accepts that the Act allows the Tribunal to consider the whole matter afresh. However, he says, in a matter of discretion the Tribunal should be reluctant to adopt a different view from that formed by the adjudicator who had the advantage of hearing the witnesses which, in this case, the Tribunal did not. Mr Riza referred me to the practice of the Court of Appeal in regard to the exercise of judicial discretion. I do not think that the analogy of the practice of the Court of Appeal is an exact one. I am concerned here with a statutory jurisdiction which puts the matter of discretion entirely in the Tribunal's power. There are undoubtedly cases where the Tribunal should be slow to take a different view of discretion from that of the adjudicator. Such cases are pre-eminently, in my judgment, cases where the discretion depends upon the impression, which a particular witness makes or upon the credibility of a particular witness. The case of R v Immigration Appeal Tribunal, ex parte Mahendra Singh [1984] Imm AR 1, a decision of Woolf J (as he then was) is pre-eminently a case dependent upon an assessment of the witness by the decision-maker. In that case whether or not there were compassionate circumstances was dependent upon the reality of a certain lady's hatred of India. The adjudicator heard her and formed the view that the hatred was genuine. In those circumstances, Woolf J said that the discretion should not be disturbed without first hearing the lady herself. The Tribunal has power under Rule 18 of the Immigration Appeals (Procedure) Rules 1972 to call evidence before it. Whether or not it exercises that power is a matter for its discretion. If it chooses not to exercise its discretion in a case where it would be appropriate to do so, then the failure to exercise it could be the subject of challenge on Wednesbury principles. This is made plain in the judgment of Goff LJ (as he then was) in Ex parte Kwadwo Osei, 23 October 1985 (unreported), where the learned Lord Justice said this: "There is one last matter to which I wish to refer before concluding this judgment. At the end of this judgment Webster J referred to a certain matter. He pointed out that, in a case like this, to a very large extent the position of all concerned depended on compassionate considerations. He then referred to an unreported decision of Woolf J in R v Immigration Appeal Tribunal, Ex parte Mahendra Singh, dated 8 February 1984, where Woolf J had said this: '. . . it seems to me that in the ordinary way where it is being alleged in a case where leave to appeal has been granted that the tribunal should re-assess the balance between the demands of the public interest in favour of deportation and the compassionate circumstances of the individual, then the tribunal should exercise its undoubted discretion to require oral evidence to be given.' Webster J then continued:

'The reasons for Woolf J taking that view are to be found in the preceding paragraphs of his judgment. I respectfully agree with and adopt that view; and this does seem to me to be a case in which, if the matter goes back before the Tribunal and if they are minded to allow the appeal, they should not consider doing so without being satisfied that they are in as good a position as was the adjudicator to weigh the compassionate issues. It seems to me that that is something which could not properly be done without hearing evidence going to those matters.'".

Goff LJ then said:

"For my part, I hope that that passage in the learned judge's judgment will not be read as placing any fetter upon the Immigration Appeal Tribunal's powers under the Act and the Rules. I have already referred to the power of the Tribunal and its jurisdiction under section 20(1) of the Act of 1971. Under Rule 18 of the Immigration Appeals (Procedure) Rules 1972 a discretion is vested in the Tribunal to decide whether or not to admit oral evidence. Now the passage from Webster J's judgment which I have just quoted suggests that in compassionate cases the Tribunal is effectively precluded from allowing an appeal without hearing oral testimony. In my judgment, that is not correct. There is no such fetter upon the power of the Tribunal. There is a discretion vested in the Tribunal and the simple fact is that, if anyone wishes to challenge the exercise of that discretion in any particular case, then the appropriate course to take is to challenge the exercise of that discretion on the ordinary Wednesbury principles."

In this case, as I have said, the Tribunal did not hear evidence as did the adjudicator. However, the facts were not in dispute. A consideration of compassionate circumstances in this case does not in any way depend upon the impression which a witness makes or upon his credibility. In my judgment, the Tribunal were correct in exercising their undoubted power to consider the question of discretion afresh. That being so, can the exercise of their power be flawed? Mr Riza suggests that it can on the basis that they failed to have regard to length of residence as a relevant consideration -- which it undoubtedly is -- under the Rules. I remind myself that they said:

"The fact that the respondent has managed to prolong his stay in this country for so long after the breach of his conditions came to light is not in our opinion a matter which he can properly pray in aid."

The use of the word "prolong" is perhaps unfortunate because it has a pejorative connotation. There is no suggestion that in this case the applicant did anything that he was not entitled to do. The appeal process is, regrettably, a lengthy one and he appealed as was his right. He made representations to his Member of Parliament as was his right. However, be that as it may, I am quite satisfied that the Tribunal is entitled to consider what may determine the characteristics of the residence in this country. The characteristics of the residence in this country was that of a residence occurring during attempts -- albeit legitimate attempts -- to secure a right to remain. I think that the Tribunal is perfectly entitled to say that residence of that quality and of that characteristic is not a matter which entitles them to exercise compassion in the applicant's favour. I do not see how by reference to Wednesbury principles the actual exercise of the discretion in this case can be flawed. Whether it is a harsh exercise is not for this court to say. For those reasons, this application is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley-Burgess, London; Treasury Solicitor

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